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Madhya Pradesh High Court · body

2012 DIGILAW 530 (MP)

Rajesh Kumar Saxena v. State of M. P.

2012-05-14

K.K.TRIVEDI

body2012
JUDGMENT : Thispetition was originally filed as original application before Madhya PradeshAdministrative Tribunal and has come on transfer before this Court alter closerof the Tribunal and is registered as Writ Petition. 2.The claim made in this petition by the petitioner is for quashment of the adverse entry recorded in the confidential reports of the years 1993 andMarch, 1994 as also a direction to respondents to promote the petitioner on thepost of Junior Auditor/Accountant Grade II, w.e.f .the date his juniors were promoted with all consequential benefits. It iscontended by the petitioner that he was communicated the adverse entry recordedin his annual confidential report ending 31st March, 1993 belatedly. The petitioner filed arepresentation but the said representation was rejected. Similarly, the adverseentry in the annual confidential report ending 31st March, 1994 was communicated to the petitionerbelatedly, against which again a representation was made by the petitioner butinstead of considering the same in appropriate manner, by communication of theorders in the years 1995-1997 it was said that the representation of thepetitioner is rejected. It is contended that in fact the adverse entrydeliberately was made to deny promotion to the petitioner and the same wascommunicated only at the eve of Departmental Promotion Committee meeting in theyear 1994. Because of such adverse entry, the claim of the petitioner was notappropriately considered for promotion and juniors to him were promoted by anorder dated 9-5-1994 . Thisled the petitioner to file the present petition before Madhya PradeshAdministrative Tribunal. On the basis of these submissionsthe relief(s) aforesaid have been claimed. 3.In response to the notice of the petition respondents have filed a reply. Theycontended that the Departmental Promotion Committee meeting was held in whichthe case of the petitioner was considered but since there was adverse entryrecorded in the Annual Confidential Report of the petitioner for the year Marchending 1993, he was not found fit for promotion. Such entry was communicated tothe petitioner. Similarly, it is contended that there was adverse entry for theyear ending March, 1994, which too was communicated to the petitioner. A representationmade against the adverse entry was considered and rejected by the respondents.Subsequently, the Departmental Promotion Committee meeting was held on 5-4-1999 , in which the case of thepetitioner was considered. The petitioner was granted an opportunity to appearbefore the Committee to explain his conduct. A representationmade against the adverse entry was considered and rejected by the respondents.Subsequently, the Departmental Promotion Committee meeting was held on 5-4-1999 , in which the case of thepetitioner was considered. The petitioner was granted an opportunity to appearbefore the Committee to explain his conduct. There were reports with respect tointegrity of the petitioner and a show-cause notice was issued to him.Thereafter, receiving the information and comments with respect to adverseentry made against the petitioner in his confidential report appropriate orders were passed. Thus, it is contended that no wrong wascommitted in passing the order impugned and as such the petitioner is notentitled to any relief whatsoever. 4.Refuting such allegations made in the return of respondents a rejoinder hasbeen filed by the petitioner stating that he has filed reply to the show-causenotice and thereafter nothing was done in that respect. Without holding aninquiry how it could be said that integrity of the petitioner was doubtful. Itis further submitted that malafidely only on thecomments by those who were prejudiced against the petitioner, therepresentations of the petitioner were decided. It is contended that in factthe adverse entries were to be communicated to the petitioner within time asper circular of the State Government in General Administration Departmentissued on 9th March, 1992 .Prior to this also the circulars were issued prescribing a period within whichthe adverse entry was to be communicated and within which the representation ifany made against the said entry was to be considered. Thus, it is contendedthat since the adverse entry was not communicated to the petitioner withintime, there was no justification of making of such adverse entry in theconfidential report of the petitioner, the orders were not rightly passed onthe representation of the petitioner, therefore, the entire stand of therespondents is liable to be ignored and the petitioner is entitled to grant ofrelief as claimed in the petition. 5.Heard learned Counsel for parties at length and perused the record. 6.The object of writing of Annual Confidential Reports is well known in theservice jurisprudence. The confidential reports of an employeeis to be written only for the purposes of adjudging his serviceabilities. If an employee of the department, who was having the excellentservice record or satisfactory service record, started showing downfall inperformance or discharge of his duties, the entries are required to be made inthe Annual Confidential Report. The confidential reports of an employeeis to be written only for the purposes of adjudging his serviceabilities. If an employee of the department, who was having the excellentservice record or satisfactory service record, started showing downfall inperformance or discharge of his duties, the entries are required to be made inthe Annual Confidential Report. Such entries whether adverse or not, arerequired to be shown to the said employee to apprise him or her with respect toperformance of duties so that he or she may improve the working in future. Theobject of recording of Annual Confidential Report would be frustrated in caseit is not timely communicated. This being the reason, the State Government hasissued the circular time and again directing as to how the adverse part of theAnnual Confidential Reports are to be communicated, within which period thesaid communication is to be made and within which period the representation ifany made against such entry, is required to be decided. This has beenreiterated in the circular, dated 9th March, 1992 , wherein all the circulars previously issued right from1979 upto 1990 have been referred. The StateGovernment has very categorically provided a time mechanism for writing of theconfidential report. The initiation of Annual Confidential Report is to be doneby 15th April. The Reviewing Officer is required to give his comments by 1st ofMay. The approving authority is required to record his comments by 15th May. Ifany adverse entry is recorded, the same is to be communicated within 30 days fromthe aforesaid final date mentioned in the circular. If any representation ismade against the said adverse entry, the same is to "be decided within amonth. If any inquiry is required to be conducted with respect to therepresentation made against the adverse entry, that has to be completed within a period of three months. This indicates thatintention of the State Government is to apprise the employee concerned againstwhom the adverse entry is recorded, with respect to such adverse entry and tocomplete the process of finalising the representationetc. made against such entry within the stipulated period so that nobody mayface any prejudice or inconvenience in case of promotion. Thatbeing so, it was necessary on the part of the respondents to communicate theadverse entry to the petitioner timely. made against such entry within the stipulated period so that nobody mayface any prejudice or inconvenience in case of promotion. Thatbeing so, it was necessary on the part of the respondents to communicate theadverse entry to the petitioner timely. 7.From the record, it is clear that adverse entry was recorded in the Annual.Confidential Report of the petitioner ending 31st March, 1993 but the same was sent for communicationonly on 9-3-1994 . This wasgrossly in violation of the instructions of the State Government. Further theentry made against the petitioner in this particular year, in confidentialreport was to the effect that the complaints against the behaviour and delay caused by the petitioner were being received and the petitioner wasto improve his working and behaviour . Whether anycomplaints made against the petitioner were enquired into and whether any factwas found proved or not, is not clear from such entry. How could it be treatedas an adverse-entry against the petitioner when there was no proof of suchcomplaints made against the petitioner or at least when no inquiry whatsoeverwas conducted against the petitioner. The petitionerwhile making representation has categorically stated that he was not in thehabit of misbehaving with anybody only his way of talking was such. lie categorically contended that none of his superiorofficers or colleagues have made a complaint against him that he has ever usedderogatory language while converting. To this effect whether any comments werecalled, whether any information was obtained or not is not clear. Nothing hasbeen placed on record to indicate as to how such a fact was found provedagainst the petitioner. Even the comments received from theauthorities nowhere indicates that there were complaints. On the otherhand some officers of the University where the petitioner at that time wasworking made the comments that the petitioner was behaving in such impropermanner. From such comments it is also not clear that the inquiry in respect ofsuch a conduct of the petitioner was ever conducted or not. Merely one officerwho has initiated the Annual Confidential Report, has made comments in thisrespect, how could it be said that the adverse entry was properly made againstthe petitioner. One more aspect is required to be examined. While consideringthe representation made against adverse entry recorded in the AnnualConfidential Report, the previous confidential reports are required to beexamined and it is to be judged whether any prejudicial comments have been madeby the reporting officer or not. One more aspect is required to be examined. While consideringthe representation made against adverse entry recorded in the AnnualConfidential Report, the previous confidential reports are required to beexamined and it is to be judged whether any prejudicial comments have been madeby the reporting officer or not. Nothing has been placed record to indicatethat the representation of the petitioner was considered in this cogent manner.Thus, a single line rejection order issued in respect of such a representationof the petitioner, specially when a belatedcommunication of adverse entry was made, cannot be sustained. On the other handsuch adverse entry was liable to be ignored or expunged, on the ground that theadverse entry was not communicated within time or expeditiously. 8.As far as the adverse entry for the Annual Confidential Report ending 31st March, 1994 is concerned it wasrecorded that the petitioner is a cunning, arrogant and harsh employee. It wasrecorded that integrity of the petitioner is not beyond doubt. It was recordedthat the petitioner was discharging the duty as per his wish. It was againrecorded that the petitioner was discourteous to his superior. This entry wascommunicated to the petitioner vide memo dated 3-2-1995 . Again such entry was communicated after theperiod prescribed by the State Government. Again it is to be seen that theentries were made by the very same officer as the petitioner was posted in thesame establishment at that time. The officer who has initiated Annual ConfidentialReport for the year 1993 has written the Annual Confidential Report for theyear 1994. Obviously once the adverse comments were recorded in the previousconfidential report the same were reflected again in the next confidentialreport. The petitioner has made a representation again such adverse part ofconfidential report and has categorically contended that all these commentswere made out of the prejudices. There were no complaints received against thepetitioner with respect to his integrity. No inquiry whatsoever was conductedin that respect and, therefore, such an entry was nothing but a prejudicial actof the reporting officer. The fact remains that adverse comments with respectto the integrity of an employee are not be madecursorily. On the other hand, a detailed inquiry is required to be conductedand then only it is to be noted down in the Annual Confidential Report. If thisis not done, the adverse entry cannot be sustained. The fact remains that adverse comments with respectto the integrity of an employee are not be madecursorily. On the other hand, a detailed inquiry is required to be conductedand then only it is to be noted down in the Annual Confidential Report. If thisis not done, the adverse entry cannot be sustained. It is clear from the recordavailable that no inquiry in that respect was conducted upto the date the entry was made in his confidential report. Only a show-causenotice was issued on 18-2-1994 ,with respect to disposal of case of one of the retired Principal, but evenafter filing of reply to such a show-cause notice, no final decision was takenby respondents. If there was no proof of doubtful integrity of the petitioner,such was not to be recorded in his confidential report. Apart from the factthat the communication of the entry was not timely made, it is also clear fromthe documents available on record that such entries could not have been madeagainst the petitioner, without holding an inquiry. 9.The another aspect is more important which has not been denied in appropriatemanner by respondents. Admittedly, the Annual Confidential Reports were beingexamined for the purposes of holding a Departmental Promotion Committee meetingfor the purposes of consideration of cases for promotion. As is indicated inthe return, the said committee meeting was scheduled to be held on 9/ 10th March, 1994 . The first adverseentry was communicated to the petitioner on 9-3-1994.-This itself is clear thatonly because respondents were not willing to consider the case of thepetitioner for promotion in appropriate manner, such entry was communicated tothe petitioner just on the eve when the Departmental Promotion Committeemeeting was to be held. This itself is enough to showthat there was bias and prejudice in the mind of the respondents-authorities insending communication with respect to the adverse entry recorded in theconfidential report of the petitioner for the year ending 31st March, 1993 . Upon their own showing as theyhave contended, the Annual Confidential Reports up to years 1989-1993 were tobe considered in respect of the persons who were to be considered for promotionon the said Departmental Promotion Committee meeting held on 9/10 March, 1994.Thus, the contention raised by the petitioner that out of prejudice he wascommunicated the adverse entry in ACR of 1993 at such belated stage cannot beruled out. Had it been a case that the entries were made at the relevant time,it was the responsibility of the Departmental Authorities to communicate thesame to the petitioner within time so that the representation if any madeagainst such entry would have been decided by the time Departmental PromotionCommittee meeting was convened. 10.Merely because the petitioner was called upon to appear before the DepartmentalPromotion Committee to explain his conduct in the year 1999 will not absorb allthe responsibilities of respondents. The respondents were duty bound tocommunicate the adverse entry to the petitioner within time and were requiredto consider the representation made against such adverse entry by the petitioner,within time, but this was not done. 11.Though all these facts have categorically been averred in the rejoinder filedby the petitioner, however, nothing in rebuttal has been placed by respondents.They have not disputed that the petitioner filed a detailed reply to theshow-cause notice issued to him. They have not disclosed whether any inquirywas conducted in that respect or any order was passed with respect to issuanceof such a show-cause notice. This is enough proof of lapses on the part ofrespondents. The petitioner cannot be made to suffer on account of lapses onthe part of respondents. The settled law is that if the Annual ConfidentialReport is corning in way, for promotion it is to be treated as adverse and ifnot communicated within time, it is to be expunged. It is also settled law thatin case of expunging of the adverse remarks the review Departmental PromotionCommittee is required to be held to reconsider the claim for promotion in viewof the law laid down by the Apex Court in U.P. Jal Nigam find others Vs. Prabhat Chandra Jain and others, AIR 1996 SC 1661 , U.P. Jal Nigarn Vs. S.C. Atri and another,(1999) i SCC 241 and Dev Dull Vs. Union of India andothers, AIR 2008 SC 2513 . It would be appropriate for this Court to directreconsideration of the case of the petitioner for grant of promotion as in thiscase it is found that the adverse entries were improperly made. 12.In view of the foregoing discussion and keeping in view the facts as have comeon record, this petition deserves to be and is hereby allowed. The order rejecting the representation of the petitioner against theadverse Annual Confidential Reports are quashed. 12.In view of the foregoing discussion and keeping in view the facts as have comeon record, this petition deserves to be and is hereby allowed. The order rejecting the representation of the petitioner against theadverse Annual Confidential Reports are quashed. The respondents arecommanded to expunge the adverse entry recorded in the confidential reports ofthe petitioner for the years 1992-1993 and 1993-1994 and to regrade the said Annual Confidential Reports of the petitioner after expunging of theadverse remarks. The respondents are directed to convene a review DepartmentalPromotion Committee and to consider the case of the petitioner for grant ofpromotion on the post of Junior Auditors/Accountant Grade-II w.e.f . 9-5-1994 the date when his juniors were promoted on-the said post. In Case thepetitioner is found fit for such promotion, he be granted such benefit ofpromotion with retrospective effect from the date the juniors to him werepromoted on the said post. Needless to say that thepetitioner would also be entitled to all consequential benefits of suchpromotions such as pay allowances and seniority. The aforesaid exercise be completed within a period of four months from the date ofreceipt of certified copy of the order passed today. 13.In the facts and circumstances of the case there shall be no order as to costs.